The court determines whether spouses are living separate and apart by the intent of the spouses and their actual physical separation. Note: At least one spouse must regard the separation as permanent.
Although the date of separation is normally a factual issue to be reviewed for substantial evidence (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930 [50 Cal. Rptr. 3d 785] (Manfer)), resolution of the opposing contentions depends on statutory construction of the language of section 771(a), a question of law to which courts apply a de novo standard of review. (Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1119 [158 Cal. Rptr. 3d 21, 302 P.3d 211].)
Section 771(a) is part of California's statutory community property scheme, a system of law that “originated in continental Europe, came to Mexico from Spain, and became California law through the treaty of 1848.” (11 Witkin, Summary of Cal. Law (10th ed. 2005) Community Property, § 1, p. 529; see In re Marriage of Bonds (2000) 24 Cal.4th 1, 12 [99 Cal. Rptr. 2d 252, 5 P.3d 815].)
Section 771(a) states that “the earnings and accumulations of a spouse … , ...